A dangerous dare

March 22, 2007

Amid all the bluster and claims of high principle, President Bush's refusal to allow aides to publicly testify before Congress on the U.S. attorney firings suggests either that he doesn't recognize the weakness of his position or that he has something awful to hide.

Mr. Bush easily could have followed long precedent and sent the aides to Capitol Hill without ceding any erosion of executive privilege. He could have declined to invoke the privilege or put only limited curbs on the aides' appearance in a bargain that is the usual way out of such confrontations.

Instead, the president made what he called a "reasonable" alternative proposal that was more like a poke in the eye. He would allow political guru Karl Rove, former White House counsel Harriet E. Miers and other aides to be interviewed by "relevant committee members." But not in public, not on the record, not under oath, and not even before full committees. Thus, there would be no way to resolve conflicting accounts, no way to provide a neutral narrative of the confusing saga to the public.

Moving sharply on the offense, Mr. Bush accused the Democratic-led Congress of a "partisan fishing expedition" and virtually dared lawmakers to issue subpoenas, threatening a constitutional battle that would wind up in the Supreme Court. A House subcommittee quickly responded yesterday by authorizing subpoenas; the Senate Judiciary Committee is expected to follow today. Mr. Bush left lawmakers little choice.

In the most famous case of a president going to the high court on the issue, Richard Nixon was resisting release of his Oval Office tapes during the Watergate probe. He lost.

Does President Bush, like Mr. Nixon, have a "smoking gun" piece of evidence to cloak? So far, there's no clear indication of criminal wrongdoing, such as obstructing justice. A botched job of dispatching federal prosecutors deemed insufficiently loyal to the Bush administration, while appalling, doesn't rise to that level. But Mr. Bush's standing with the American people is so low that they aren't likely to defend him for cashiering his own appointees, apparently for failing to prosecute Democrats or moving too aggressively against Republicans.

The president's legal case doesn't look much better than his chances in the court of public opinion. He says he wants to ensure that presidential aides will be able to speak freely to the boss without fear of being "dragged" before Congress. But the disputed material in this case is mostly communications between aides that don't involve Mr. Bush directly. Nor does it involve security considerations to which the courts have been sympathetic.

Mr. Bush should head off these legal and political battles by adopting the course of most of his modern predecessors of both parties, who sent nearly three score White House aides to testify before Congress without raising the shield of executive privilege.

If he doesn't, the president risks losing whatever credibility his tarred and tired administration has left.